Delhi District Court
Prema Bhandari vs . Sh. Sachdev Lohia & Ors. on 27 February, 2017
THE COURT OF SH. ANIL ANTIL, ADJ05, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
A. Civil Suit no. 7828/16
Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
In the matter of
1.Smt. Prema Bhandari W/o Sh. R. Bhandari R/o 8, Padmini Enclave, Hauz Khas, New Delhi. .............. Plaintiff Versus
1. Shri. Sachdev Lohia S/o Late Sh. Panna Lal R/o 671, Village & Post Office Ghitorni, New Delhi.
2. Sh. Parmod Mishra S/o Sh. D.N. Mishra R/o 26, Lal Bhadur Shastri Vidyapeeth New Delhi
3. Sh. Suresh Kumar S/o Sh. Hari Prakash R/o 48, Kapashera Delhi
4. Sh. Ram Chander Lohmort Notary Public Kapashera CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 1 of 44 New Delhi
5. Sub Registrar (North) Kashmiri Gate Delhi ............Defendants (Date of institution of suit :26.09.2003) AND B. Civil Suit No. 9893/16 Sachdev Lohia VS. Prema Bhandari.
In the matter of
1. Shri. Sachdev Lohia S/o Late Sh. Panna Lal R/o 671, Village & Post Office Ghitorni, New Delhi. .............. Plaintiff Versus
2. Smt. Prema Bhandari W/o Sh. R. Bhandari R/o 8, Padmini Enclave, Hauz Khas, New Delhi. ............Defendants (Date of institution : 21.08.2003) CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And
CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari
Page no. 2 of 44
Date reserved for judgment: 21.02.2017
Date of pronouncement : 27.02.2017
Composite Judgment
1. 1 Vide this composite judgment, I shall dispose of two suits filed
before the court Bearing CS no. 9893/16, titled as Prema Bhandari Vs Sachdev Lohia & ANR for declaration/cancellation and permanent injunction and, an earlier suit bearing CS no. 7827/16 titled as Sachdev Lohia Vs. Prema Bhandari for permanent injunction. 1.2 Vide order 06.02.2006 the two suits were consolidated and put to trial, the leading case being CS bearing no. 7828/16 titled Prema Bahndari Vs Sachdev Lohia.
1.3. Initially, a suit bearing no. 7827/16(referred as 'first suit') for permanent injunction was filed by Sh. Sachdev Lohia(hereinafter referred as 'defendant') against Ms. Prema Bhandari (hereinafter referred as 'plaintiff') on 14.08.2003 inter alia pleading that Sh. Sachdev Lohia is the absolute owner of the land admeasuring 18 Bigha and 6 Biswas; comprising in Khasra No. 1720(47), 1446/12(416), 1647/1(011), 1647/2(014), 1647/3(32), 1721(4
16), situated at village Chattar Pur, New Delhi hereinafter referred as "suit property". The claim of the ownership title of the Sachdev Lohia is based on agreement to sell dated 15.05.2002 and GPA/SPA/Will/Possession letter/Receipt etc. executed by erstwhile owner Sh. Dhan Raj Sondhi (now deceased). Possession stated to be handed over to the defendant on CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 3 of 44 04.10.2002.
1.4. It is the case of the defendant that on persistent and continuous threats issued by the plaintiff Ms. Prema Bhandari, defendant was compelled to institute the suit seeking permanent injunction restraining Ms. Prema Bhandari to forcibly dispossess him from the suit premises. Vide order dated 21.09.2003 passed by the Hon'ble High Court parties were directed to maintain the status quo.
1.5 Thereafter, another suit was filed by Ms Prema Bhandari against the defendant Sh. Sachdev Lohia seeking declaration and cancellation (herein after mentioned as main suit), that the documents i.e. GPA/Will/Agreement to sell/possession letter/Receipt as null and void. Other reliefs claim in the present suit are :
(i) Declare the plaintiff to be the owner of the suit property admeasuring 18 Bigha and 6 Biswas; comprising in Khasra No. 1720(47), 1446/12(416), 1647/1(011), 1647/2(014), 1647/3(32), 1721(416), situated at village Chattar Pur, New Delhi.
(ii) Permanent injunction against the defendant their agents etc. restraining them for interfering in peaceful possession and enjoyment of the plaintiff in suit premises alongwith damages etc.
2. Plaintiff's version as per averments in CS no. 7828/16 (main suit): 2.1 Succinctly, the plaintiff is the owner and in possession of Farm CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 4 of 44 land referred as suit property herein above. The above said Farm Land was purchased by plaintiff's father Sh. Dhan Raj Sondhi vide registered sale deed dated 16.01.1965 from Delhi Land & Finance Pvt. Ltd. It was mutated in his name, Sh. Dhan Raj Sondhi became the absolute owner of the aforesaid land. 2.2 Sh. D.R. Sondhi executed his last and the only Will and testament on 18th March 2003. Vide the said Will, he bequeathed all the movable and immovable properties; the Farm Land, to the plaintiff, his daughter class I legal heir. On the death of Sh. D.N. Sondhi, plaintiff became the owner of the Farm Land, took over its possession and control. Plaintiff engaged the services of Dev Vig Security Services Pvt. Ltd. to protect her possession, she used to pay the said security agency by cash and by cheque. 2.3 It is stated that on 29.08.2003, plaintiff had received summons of the suit filed as Sachdev Lohia Vs. Prema Bhandari. In the said suit defendant has alleged that farm land was purchased by him from Mr. D. R. Sondhi, plaintiff's father, and he is in continuous possession of the same since October 2002. It was alleged that plaintiff and her husband had been threatening him to dispossess from the suit premises; various complaints in this regard were made to the Police. It is stated by the plaintiff that suit filed by the defendant is false and frivolous based on false and frivolous document.
2.4. It is the case of the plaintiff that D1 is a total stranger and unknown to the plaintiff and her family. He was also not known to the CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 5 of 44 plaintiff's father. The documents i.e. GPA dated 08.10.2002, Will dated 08.10.2002, Agreement to sell dated 15.05.2002 (unregistered) and receipt and possession letter dated 04.10.2002 (unregistered) are forged and fabricated, does and not bear the signatures of the plaintiff's father Late Sh. D.R. Sondhi thereon.
2.5. It is avered that on 30.08.2003, plaintiff received a phone call from her security agency that earlier in the day about 20 to 25 men had forcibly and illegally entered the Farm Land holdings out threats to the two security guards. Plaintiff made complaint to the police; an FIR was registered against defendant. Police removed the unauthorized persons from the Farm Land. D1 with the cooperation and connivance of D2 to D5 conspired to cheat the plaintiff and to illegally usurp her property. 2.6 It is the case of the plaintiff that she is the absolute owner of the farm land being the beneficiary under Will dated 18.03.2003 left by her father Sh. D. R. Sondhi.
2.7. Hence, the present suit is filed against the defendant seeking declaration/ cancellation and permanent injunction.
Notice was issued. None appeared on behalf of defendants except defendant no.1. D1 is the main contesting party.
3. Written Statement 3.1 WS was filed by defendant denying all the material averments of the plaint. WS is in line with the averments of the first suit filed by the CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 6 of 44 defendant. It is reteriated that the defendant is the absolute owner of the suit property. Vide agreement to sell dated 15.05.2003 Sh. Dhan Raj Sondhi agreed to sell the land to the defendant. Documents i.e. GPA, SPA, Will, Agreement to sell etc. were executed in his favour; possession of the land was handed over on 04.10.2002; GPA and Will were registered on 08.10.2002; defendant is in possession and cultivating the land out of 18.6 Bighas: defendant had planted rose plants on approx. 7 to 8 Bighas with remaining line vacant; possession of defendant is uninterrupted since 04.10.2002.
3.2 The plaintiff who claims herself to be the daughter of deceased Sh. Dhan Raj Sondhi is threatening the defendant to dispossessed him from the suit property. That the plaintiff has no right, title or interest in the suit land as on execution of the documents on 08.10.2002 the defendant became th absolute owner of the land in dispute.
3.3 That the defendant made complaint to the police on 15.07.2003 and requested the police to take the action against the plaintiff, as she has increased her threats on the defendant. On 17.07.2006 few persons claiming themselves to be the employees/servants of the plaintiff came to the suit land threatened to dispossess the defendant.
3.4 That the defendant failed to persuade the plaintiff to stop her illegal activities. Plaintiff for malafide reasons, is trying to take forcibly possession of the suit property from the defendant. The suit of the plaintiff CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 7 of 44 should be dismissed with heavy cost and the suit filed by him be decreed in his favor.
4. Replication 4.1 Plaintiff denied the preliminary objections raised by the defendant. Replication reiterated the contents of the plaint.
5. Issues From the pleadings of the parties, following issues were framed by the Ld. Predecessor vide order dated 03.05.2007:
1. Whether Mr. D.R. Sondhi has executed the Will dated 18.03.2003 in favour of the plaintiff? OPP.
2. Whether the plaintiff was in possession of the suit land after 04.10.2002? OPP.
3. Whether Mr. D.R. Sondhi has executed sale documents such as agreement to sell, power of attorney in favour of Defendant no. 1? OPD.
4. Whether the defendant no. 1 has been dispossessed from the suit property on 30.08.2003 by the plaintiff? OPD.
5. Whether the plaintiff can inherit the suit land in view of section 50 of Delhi Land Reforms Act? OPP.
6. Whether the plaintiff has any right in the suit property? OPP.
7. Whether the plaintiff is entitled for decree of declaration and permanent injunction qua the land in question? OPP.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 8 of 44
8. Relief.
Three issues were also framed in the CS no. 7827/16 titled as Sachdev Lohia Vs. Prema Bhandari:
(I) Whether the defendant has voilated the status quo order dated 21.08.2003? OPP.
(II) Whether the plaintiff has any title to the suit property ?if so what? OPP.
(III) Whether the plaintiff is entitled for relief of injunction as prayed for? OPP.
Suit were consolidated with direction that evidence shall be lead in the suit CS no. 9893/16, titled as Prema Bhandari Vs Sachdev Lohia & ANR being the main suit.
Thereafter, the matter was fixed for evidence. 6 Plaintiff's evidence:
6.1. Plaintiff herself examined as PW1. Filed her evidence by way of affidavit which is Ex. PW1/A, wherein she reiterated the averments made in the plaint. During her deposition, she also relied upon the documents and tendered her evidence and proved documents exhibited as Ex. PW1/1 to Ex.
PW1/50. PW1 also relied upon the document i.e. Ex.PW1/51 to Ex.PW1/71. The original Will is on the record and the photocopy of which was earlier exhibited as Ex.PW1/41, original Will was exhibited as CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 9 of 44 Ex.PW1/41A.
6.2. PW2 Sh. Rohit Diesh filed his evidence by way of affidavit which is Ex.PW2/1. PW2 was examined to show the payment made by the plaintiff to Rafiq Ahmaed on 07.08.2003 6.3. Ms. Jaya Sanjeev Kapoor has been examined as PW3 and filed her evidence by way of affidavit Ex. as PW3/1. PW3 is witness to the Will dated 18.03.2003 executed by Sh. D.R. Sondhi. 6.4. Sh. Naresh Malhotra has been examined as PW4, filed his evidence by way of affidavit exhibited as Ex.PW4/1. PW4 is also witness to the Will dated 18.03.2003 executed by Sh. D.R. Sondhi. 6.5. Sh. Veer Singh Yadav, Assistant Manager, IDBI Bank has been examined as PW5. He had brought the bank statement relating to account no. 010102000001427 for the period from 23.05.2002 to 31.12.2003 in the name of Rahoul Siemssen Eng. Pvt. Ltd. The statement is Mark 'X1'. 6.6. PW6, Sh. Devender Singh, for Ms Dev Vig Security Services Pvt. Ltd., he provided security guards at suit premises at the instance of plaintiff. He placed the photocopies of the original bank statement for the period from 4th April 2001 to 1st April 2004 are exhibited as Ex.PW6/1 (colly) (pages no. 1 to 10).
6.7. Sh. Ramesh Kumar Rewaria, Manager, Syndicate Bank has been examined as PW7. He brought the statement of account bearing old current account no. 399/2002 and new account no. 90811010000793 of Super CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 10 of 44 Constructions proprietorship of Sh, Devender Singh (PW6). 6.8. And thereafter, PW8 Sh. Ramesh Kumar Rewaria, Manager Syndicate Bank already examined as PW7 again resummoned as PW8 as a summoned witness for bringing the record relating to Ms Dig Vig Security Agency.
6.9. He had brought the copy of opening of account bearing no. 356 dated 27.11.2000 is exhibited as Ex.PW8/1, the board resolution dated 14 th August 2001 is marked as Mark X. The authorized signatory of said account is marked as Mark X1. The copy of account opening form is marked as Mark X2. The statement of account for the period of 02.04.2002 to 21.08.2004 is marked as Mark X3 ( pages 1 to 45). Copy of Form 60 has been signed by Sh. Devender Singh dated 27.11.2000 is marked as Mark X4. Defendant's Evidence Defendant examined six witnesses in support of his case. 6.10. Sh. Sachdev Lohia examined himself as DW1. He filed his affidavit of evidence which is exhibited as Ex.DW2/A. He relied on the documents which are Ex.DW2/1 to Ex. DW2/7.
6.11. Sh. Manoj Nagar, proprietor of Nagar Photo studio has been examined as DW2 and filed his evidence by way of affidavit exhibited as Ex.DW2/A. He relied upon the documents which are Cash memoes already exhibited as Ex.DW1/P7, photographs exhibited as Ex.PW2/D2 to Ex.PW2/D14.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 11 of 44 6.12. Sh. Ram Bir Tanwar, working as cartriage contractor, who unloaded soil from the Lohia farm, has been examined as DW3 and filed affidavit of evidence which is Ex.DW3/A. He relied upon the cash memo dated 03.07.2003 issued by him which has already been exhibited as Ex.DW1/P6 on 12th February 2014 though it is mentioned in his affidavit as Ex.DW3/1.
6.13. Sh. Surya Prakash, LDC, Sub Registrar I, Kashmiri Gate has been examined as DW4. He had brought the General Power of Attorney registered on 8th October 2002 as document no. 16726 additional book no. 4, Vol No. 895 on pages 38 to 41 dated 8 th October 2002 which is Ex.DW1/5. He has also brought the Will registered on 8 th October 2002 as document no. 11231, Book No. 3, Vol. No. 308 on pages 181 to 182. 6.14. HC Sumer Singh, PS Mehrauli summoned witness has been examined as DW5. DW5 stated as per record DD no. 39/A dated 30.08.2003 and DD no. 24/A dated 30.08.2003 stands destroyed as per order dated 15.12.2007.
6.15. Sh. G.S. Meena, Record Keeper, SDM office, Tehsil Mehrauli has been examined as DW6. He brought khasra Girdawari for the year 2002 to 2006.
6.16. Records of GPA and Will was again summoned by the court on its own motion. Sh. Dinesh Chand Mathuria, DEO examined.
7. Arguments : CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 12 of 44 7.1 I have heard the Ld. Counsels for the parties at length. I have also gone through the written submissions filed by the parties.
8. Findings: On the basis of material available on record, my issuewise findings are as under:
9. Issue no. 1:Whether Mr. D.R. Sondhi has executed the Will dated 18.03.2003 in favour of the plaintiff? OPP.
9.1 Onus of this issue was on the plaintiff. It is the case of the plaintiff that the father of the plaintiff, Sh. D.R. Sondhi, bequeathed all his immovable properties by a Will dated 18.03.2003. In terms of Clause (a) of the Will, plaintiff Ms. Prema Bhandari is the beneficiary of the farm land, mentioned in annexure A(2), herein before referred as suit property. The original will was produced and filed in the court by Sh. Kumar Shankar Dass, Sr. Advocate, who was one of the executant of the Will of Late Sh. D.R. Sondhi, the Will was Ex. as PW1/41A.
9.2 In support of her case, to prove the Will, plaintiff filed her evidence by way of affidavit exhibited as PW1/A. In her deposition, it is stated that the Will dated 18.03.2003 is the last Will of her father and no other Will was ever executed in respect to the suit property. It is deposed that in terms of the Will she is beneficiary of the suit property. To prove the aforesaid Will plaintiff examined Dr. Jaya Kapoor as PW3, and Sh. Naresh Malhotra as PW4, the witnesses to the said Will. PW3 and PW4 filed their CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 13 of 44 evidence by way of affidavit exhibited as Ex.PW3/1 and Ex.PW4/1. 9.3 PW3 Ms. Jaya Kapoor, a family friend and a doctor of the Sondhi family deposed that on 18.03.2003, Mr. D.R. Sondhi called her at his residence at N17, Pansheel Park, New Delhi to be the witness to making of his Will. It is also deposed that Sh. D.R. Sondhi executed his Will in her presence as well as in presence of one another person Sh. Naresh Malhotra. Further, deposed that she and Sh. Naresh Malhotra signed the Will as a witness in presence of Sh. D.R. Sondhi as well as in presence of each other. 9.4 PW3 cross examined at length, she has denied material suggestions put to her that the Will is forged and fabricated document; that the Will was not signed by the D.R. Sondhi. In her cross examination PW3 has reiterated the statement made in her examination in chief that she is the family friend of the Sondhi family; before coming friends, she in her capacity as a doctor was a medical advisor to the Sondhi family; she was assisting and helping the Sondhi family in the charitable trust. 9.5 In her cross examination she specifically deposed that she was called by the Sh. D.R. Sondhi at his residence to sign the Will, reiterating that only three persons were present there at that time, namely, Sh. Naresh Malhotra, D.R. Sondhi and herself. Further, stated that the Will which she signed contained number of annexures. Also stated in cross examination that she is not aware whether the Will in question was registered or unregistered but categorically stated that she did not go to the office of the Sub Registrar CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 14 of 44 for registration.
9.6. PW3 was also put to the cross examination on the aspect of medical condition of the Sh. D.R. Sondhi. Pw3 in her examination deposed that Mr. Sondhi was admitted in hospital for chest infection in the year 2003 but he was not in hospital on 18.03.2003, the day when the Will was executed.
9.7. PW3 identified the signatures of Sh. D.R. Sondhi and Sh. Naresh Malhotra on the certified copy of the Will. 9.8. Testimony of PW1 & PW3 is further corroborated by deposition of PW4 Sh. Naresh Malhotra, the other witness to the Will. PW 4 is a relative of the Sondhi family, who was a regular visitor to the premises. He deposed that Sh. D.R. Sondhi called him on 18.03.2003 to be a witness to his Will. It is deposed that Sh. D.R. Sondhi signed the Will in his presence and at that time Dr. Jaya Kapoor was also present. Both he and Dr. Jaya Kapoor thereafter signed the Will in presence of each other. It is also deposed that before signing the alleged Will a brief bequest of his property in favour of his daughter and his grand children was explained by D.R.Sondhi. Certified copy of the Will is already exhibited as Ex.PW1/41A, PW4 identified the signatures of Sh. D.R. Sondhi, Ms Jaya Kapoor and of himself appended on the Will.
9.9. PW3 &PW4 were cross examined at length by the defendant, however, nothing incriminating has come on record to raise doubt regarding CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 15 of 44 their presence, at the residence of Mr. Sondhi or to the witness to the alleged Will. Rather, in the cross examination PW4 deposed that the Will was running into 7 to 8 pages; he signed the Will at the last page; Mr. Sondhi signed all pages and further stated that Dr. Kapoor was also signed on last page.
9.10. Both witnesses had denied the suggestions regarding that the Will is forged and fabricated, and, was never signed by the witnesses or the executant in their presence.
9.11. During course of arguments it was urged by the Ld. Counsel for the defendant that due to illness Sh. D.R. Sondhi was not in a fit state of mind, at the time of execution of the Will. No evidence has been adduced by the defendant to substantiate his contentions. Neither in his WS nor in his affidavit of evidence defendant has ever alleged that Sh. D. R. Sondhi was not well and not capable of executing the said Will. Further, no suggestions were put to the witnesses PW3 and PW4 that Sh. Sondhi was not mentally fit to execute the Will at the relevant point of time. Testimony of both the witnesses remains impeached. Once, the initial burden to prove execution of the Will was discharged by the plaintiff, the onus has shifted on the defendant to prove the contrary. To say, the Will was never executed or that Mr. Sondhi was not in a fit state of mind at the time of execution of the Will holds no water.
9.12. A reference to the decision of the Hon'ble Supreme Court in the CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 16 of 44 case of "Savithri Vs. Karthyauani Amma reported as ()2007"11 Scc 621"
would be fruitful herein: "Will like any other document is to be proved in terms of the provisions of Section 68 of the Indian Succession Act and the Evidence Act. The propounder of the Will is called to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of providing its execution. This is the mandate of section 68 of the Evidence Act and the position remains the same even in a case where the opposite party doe not specifically deny the execution of the document in the written statement."
9.13 Appreciating the deposition of PW3 and PW4 in light of the settled principle of laws I am of the considered opinion that plaintiff has duly proved the execution of the Will dated 18.03.2003 by Sh. D.R. Sondhi in terms of the Sec. 68 of the evidence Act, 1872 read with Sec. 63 on the Indian Succession Act.
9.14. Accordingly, the issue is decided in favour of the plaintiff and against defendant.
9.15 Issue no. 3 is taken up first as my finding of this issue would have direct bearing on issue no.2 i.e. legal possession dehors physical CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 17 of 44 possession.
10. Issue no. 3: Whether Mr. D.R. Sondhi has executed sale documents such as agreement to sell, power of attorney in favour of Defendant no. 1? OPD.
Issue no. 2 (in first suit) : whether the plaintiff has any title to the suit property, if so what? OPP.
10.1. These issues are intricately connected and similar in nature. The findings of it would have direct bearing on other issue. Onus of this issue was on defendant Sh. Sachdev Lohia. Defendant examined himself as DW1/A. In his deposition he has reiterated the contents and averments of the plaint of the first suit for permanent injunction filed by him. He deposed that he purchased the suit property from erstwhile owner Sh. Dhan Raj Sondhi and became the absolute owner of the farm land in question. The absolute ownership is claimed on the basis of the documents alleged to be executed by Sh. D. R. Sondhi as mention herein;
(i) Agreement to sell date 15.05.2002 (unregistered), Ex. DW1/1.
(ii) Acknowledgment receipts of sale consideration dated 04.10.2002 of Rs. 56,86,000/ Ex. DW1/2 (unregistered),
(iii) Possession letter dated 04.10.2002 Ex. DW1/3(unregistered),
(iv) GPA in favour of the defendant dated 08.10.2002 Ex. DW 1/4(registered GPA),
(v) Will dated 08.10.2002 registered before Subregistrar I, North Ex.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 18 of 44 DW1/5.
10.2. In his evidence DW1 deposed that on 15.05.2002 Sh. D. R. Sondhi entered into an agreement to sell qua the suit property with the defendant. It is deposed that a sum of Rs. 20 lacs, in cash was paid to Sh. D. R. Sondhi; the agreement is signed by the defendant at point 'A; and Sh. D. R. Sondhi at Point 'B'. It is further deposed that the agreement to sell, was witnessed by two persons namely Sh. Pramod Mishra and Sh. Sanjay Kumar. It is deposed that in terms of the agreement to sell, balance amount of sale consideration, a sum of Rs. 39,86,000/ was paid to Sh. D. R. Sondhi, on 04.10.2002. It is stated that Sh. D. R. Sondhi also executed a final payment receipt acknowledging the payment of total sale consideration i.e. for a sum of Rs. 59,86,000/. The receipt was signed by Sh. D. R. Sondhi, Ex. as DW 1/2.
10.3. It is also deposed that after receiving the said amount Sh. D. R. Sondhi, handed over the physical possession of the suit premises to the defendant. A possession letter was also executed by Sh. D. R. Sondhi Ex. as DW1/3. DW1 identifies the signatures of Sh. D. R. Sondhi at point 'A' on both the receipt and the possession letter.
10.4. Further, deposed that on 08.10.2002 Sh. D. R. Sondhi also executed a GPA and a Will in favour of the defendant. The documents were registered in the office of SubRegistrar1, North and, are exhibited as Ex. DW1/4 and DW1/5 respectively.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 19 of 44 10.5. It is deposed that Sh. Sondhi took the defendant to the office of public notary at Kapashera for notarization and registration of the documents. It is stated that GPA and Will could not be registered and the same got registered later on 08.10.2002, on the date fixed by Sh. D. R. Sondhi. 10.6. It is deposed that the defendant is in continuous and uninterrupted possession of the suit premises. It is deposed that the plaintiff herein, Ms. Prema Bhandari, threatened the defendant to take forcible and illegal possession of the suit premises. A complaint to the police was made by the defendant against the plaintiff on 15.07.2003; thereafter, number of complaints were made by the defendants to the police against the plaintiff dated 15.07.2003 and 17.07.2003 Ex. as DW1/6 and DW1/7. 10.7. DW1 further deposed that on 30.09.2003 defendant was forcibly dispossessed by the plaintiff with the assistance and connivance of the police officials.
10.8. To controvert the case of the defendant, plaintiff in her pleadings and testimony has denied the execution of the alleged documents i.e. GPA, Will, possession letter, Agreement to sell and receipt, by her father Sh. D. R. Sondhi.
10.9. PW1 deposed that Sh. D. R. Sondhi in his lifetime never ever sold the property to any person. It is urged that all the documents are false, forged and fabricated. It is submitted that the recital in all the documents filed by the defendant have incorrect details, name of Sh. D. R. Sondhi is wrongly CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 20 of 44 spelled; name of plaintiff's grandfather is also wrongly spelled; address of the Sh. D. R. Sondhi is wrongly mentioned and, even Khasra no. mentioned in the documents are incorrect.
10.10 It is argued by the plaintiff that defendant has failed to prove any consideration amount was paid at the time of execution of the agreement to sell or ever thereafter. It is submitted that all the documents i.e. agreement to sell, Will, possession letter, receipt etc., are forged and fabricated. 10.11. DW1 deposed that Sh. D. R. Sondhi had executed the agreement in favour of the defendant on 15.05.2002 which was read and explained to the defendant in presence of Mr. Layak Ram, Sh. Pramod Mishra and Sh. Sanjay Kumar, the two witness to the agreement to sell. 10.12. Worth mentioning is that none of these witnesses have been examined by the defendant, nor even summoned to depose before the court, despite the fact that the witnesses were known and allegedly present there at the behest of the defendant.
10.13. In the cross examination DW1 admits that no acknowledgment receipt was taken by him when the amount of Rs. 20 lacs, in cash, was paid to Sh. D. R. Sondhi at the time of execution of agreement to sell. In his deposition defendant testified that he had borrowed the cash of Rs. 20 lacs from his friends and relatives to make the part payment towards sale consideration on 15.02.2002. He also stated that a sum of rs. 39,86,000/ was paid in cash to Sh. D. R. Sondhi on 04.10.2002 by taking the loan from his CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 21 of 44 friends, family and other relatives.
10.14. No witness, of his family or relative or any other has been examined by the defendant to show that the sum was ever borrowed from them. Neither any other document is filed to show that the loan was taken by the defendant. A sum of Rs. 20 lacs or for that matter for a sum of Rs. 59,86,000/ is the huge amount and it becomes highly improbable to advance loan of such an amount without any evidence or document to show. 10.15. Further, defendant was cross examined on his financial status. In the cross examination DW1 stated that he has no property in his name; he does not own any property except the suit land; he admits that he has never filed any ITRs; he alongwith his brother was into real estate business, mainly dealing in South Delhi property and getting their documents typed in Mehrauli and INA. He also states that some income is also earned by the him and his family by selling buffalo Milk.
10.16. During his cross examination plaintiff had summoned the bank statement of the defendant. Perusal of the statement of the passbook reveals that defendant did not have requisite funds in his bank account at the relevant point of time. A meager amount is reflected.
10.17. Defendant in his cross examination admits that he visited the suit property for the first time on dated 04.10.2002 the date on which the physical possession of the suit property was taken. Pausing here for a moment, I put a question to myself, would any person enter into an CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 22 of 44 agreement to sell of a property i.e. admeasuring 18 Bigha and 6 Biswas, which he had never ever seen or visited in his life and, pays a sum of Rs. 20 lacs in cash without taking any acknowledgment, and more the so, when the seller is totally stranger to him. The answer is empathetically NO, highly improbable. Defendant has failed to adduced any cogent evidence, rather no evidence has been led, that a sum of Rs.20 lacs and thereafter, Rs.39,86,000/ was ever paid by him to the plaintiff. Mere reliance upon the receipt Ex. DW 1/2 holds no water. The execution of this document is itself in question. Witnesses thereof have not been examined for the reasons unexplained. The defendant has failed to prove the factum of consideration in the transaction. 10.18. Ld. Counsel for the defendant argued that plaintiff had deposed that her father was meticulous in maintaining his affairs; her father was also maintaining ledger account of the income and expenses of the farm land since 1990 and maintained till 2002, and thereafter, she also maintained the ledgers for the period 2002 to 2003 under the supervision of her father. It is argued by the Ld. Counsel that the plaintiff has failed to produce the ledger for the relevant period despite being requisitioned by the defendant. It is submitted that plaintiff is deliberately and intentionally withholding the ledger for the said period to conceal the truth, as the ledger account would have shown the payment made by the defendant. Ld. Counsel urges an adverse inference be drawn against the plaintiff in terms of provisions under Sec. 114(g) of the Evidence Act. In support of his contention defendant has relied upon the CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 23 of 44 following judgment:
(i) Shukla Chakarborty Vs. Sudeep Mitra 210(120)DRJ 111,
(ii) Punit Rai Vs. Dinesh Chaudhary (2003) 8 SCC 204,
(iii) Milkfood Ltd. Vs. Union Bank of India 143 (2007) DLT 693,
(iv) DR. Jyoti Prakash Tayal Vs. Mohinder Singh 139 (2007) DLT
214. 10.19. I am unable to agree with the contentions raised by the defendant. There is no dispute in the principles of law laid down by the authorities relied upon by plaintiff, but the same are not applicable to the facts herein. Each case has its own peculiar facts and circumstances, appreciating which, the question of presumption and inference is to be drawn. 10.20. Herein, PW1 in her cross examination has stated that the ledger of the relevant period was handed over to the CA by her father for filing ITRs; after his death the said copy was not returned by the CA; Several time the CA was asked to return the ledger, but the same was not traceable and had got misplaced in his office.
10.21. Sh. D. R. Sondhi, father of the plaintiff expired in the year 2003. Record requisitioned were of the year 200203, witness was asked to produce them after considerable number of years, thereafter, it is quite possible that the said document might have been misplaced by the CA. Moreover, had there been any payment of money as alleged by the defendant, the same would have been reflected in the ITR of the corresponding years or in the CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 24 of 44 statement of accounts of Mr. Sondhi, filed by the plaintiff. No malafidies could be attributed, or adverse presumption raised simply because the ledger register was not produced. Considering the entirety of facts and attending circumstances, I see no reason to disbelieve the statement of the plaintiff; the reason appears to be plausible one. Arguments of the defendant are misconceived .
10.22. In his cross DW1 further states that he cannot admit or deny the name of Mr. Sondhi and his father's name was not correctly mentioned and states that he was not aware how Mr. Sondhi was spelling his name in the documents. It is unlikely that a person, who himself is in a real estate business, would not try to verify the particulars of the person from whom he is purchasing the property.
10.23. It is argued by Ld. Counsel for the defendant that the plaintiff has denied that the signatures on Ex. DW1/1 to Ex. DW1/5 are not that of Mr. Sondhi. It was incumbent on the plaintiff to produce evidence to disprove the signature on the documents by leading evidence in affirmative. Important herein would be to mention that the first suit was filed by the defendant herein titled as Sachdev Lohia Vs. Prema Bhandari bearing CS no. 7827/16 for permanent injunction issues were framed and onus was put on the defendants to prove his title of the suit property i.e. documents Ex. DW1/1 to DW1/5, which the defendant based on the documents i.e. Agreement to sell/ receipt/Possession letter/Will/ GPA. It was incumbent on the defendant CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 25 of 44 that to lead all his evidence to prove the execution of the documents. Defendant has neither examined any attesting witness, nor any other witness has been examined to prove the execution of the document. Even the public notary has not been summoned to depose in his favour. Neither of the parties have lead expert evidence to prove or disprove the signatures of Sh. D. R. Sondhi. In such circumstances, the onus on the plaintiff can only be put once the initial burden is discharged by the defendant, which the defendant herein has failed to do so.
10.24. Further more, Will is stated to be executed by Mr. Sondhi in presence of two witness Sh. Pramod Mishra and Sh. Sanjay Kumar. It is settled that the Will can be proved in terms of Sec. 68 of the evidence Act, 1872 read with Sec. 63 on the Indian Succession Act, by examining at least one witness to the execution of the document. Documents shall not be used as evidence until one attesting witness at least has been called for the purpose of providing its execution. Herein defendant has not examined any of the witness to prove the execution of the Will, nor any other witness to prove the handwriting of the executant, therefore, the Will remains unproved and cannot be relied upon and read in evidence.
10.25. It was contended by the Ld. Counsel for the defendant that the GPA and Will are registered documents duly notarized therefore, presumption under Sec. 57 and 85 of the Evidence Act would be available to the defendant to establish that the documents were duly executed and the CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 26 of 44 onus would stand shift on the plaintiff to prove contrary. 10.26. In support of his submissions Ld. Counsel has relied upon the following judgment 'Rajesh Wadhwa Vs. Dr. Sushma Govil 37(1989) DLT 88' and "Exmoco Ltd. Vs. The Union of India & Anr. CS(OS) No. 1439/1991'. Admittedly there is no denying to the proposition of law laid down by the authorities relied upon by the defendant. However, the same are of no assistance to the defendant in the facts and circumstances of the present case.
10.27. Here in the present case, the very execution of the document is shrouded under suspicion; the documents including the GPA are denied by the plaintiff; it is alleged to be forged and fabricated. Neither any attesting witness nor the Public Notrary, who notarized the documents, was examined by the defendant to prove the execution. Bare looking at the original documents would show the photographs of the Mr. Sondhi appears to be copy of a photograph which has been cropped/ cut out from some other picture. Date of execution of the GPA is blank/not mentioned. Name and no. of the stamp vendor, appear to have been deliberately concealed therefrom. 10.28 Appreciating these circumstances, I find some force in the submissions of the plaintiff that the registration of GPA and Will is registered in SubRegistrar Office(north) itself raises a doubt about the execution and registration of the documents. It is submitted that registration of document was computerized in South Delhi in the year 2002 and therefore, to hoodwink CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 27 of 44 the procedure the said documents were allegedly got registered in Kashmiri Gate (North). Mr. Sondhi was never physically present there. 10.29 No satisfactory reason is forthcoming, why the GPA and Will got registered in jurisdiction of Kashmiri Gate (North district) when the property is situated at Mehrauli South Delhi, the parties are residing in South Delhi, and documents are alleged to be notorized in Kapasehera, South Delhi. DW1 has also given evasive reply to how and when the date of registration was fixed by Mr. Sondhi. He was informed by some middle man. The name of the middle man is not forthcoming, neither in his affidavit of evidence nor in pleadings, defendant has ever spoken about any middle man in the transaction between the parties.
10.30 Para 13 of the affidavit of evidence indicates Sh. D. R. Sondhi took the defendant to the notary public and registration of the documents and GPA and Will could not register as the office of the Registrar was closed on 04.10.2002, whereas in Para 11 of the affidavit defendant deposes that the GPA was executed in favour of the deponent on 08.10.2002. It was also signed by him and the other witnesses on 08.10.2002, thereby making contradictory in its own contradictions statements. 10.31 Therefore, the onus was on the defendant to prima facie prove the valid execution of the document, before any presumption could operate in his favour. Defendant failed to discharge the said onus and hence, the question of presumption under the provisions relied upon by the defendant CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 28 of 44 does not arise.
10.32. Interesting to note is the fact that defendant is harping on the same set of documents, the contents of which he has denied in his deposition. There are material contradiction in the recital of the agreement to sell and the deposition of the defendant. Agreement to sell mentions :
(a) Para 10, first party has handed over the original documents and papers to second party.....
(b) Para 11, physical possession of the site handed over.....
(c) Para 6, first party has executed an irrevocable GPA...
(d) does not mention any date for payment for the balance consideration.
10.33. DW1 in his deposition contradicts the recital in the agreement to sell and admits that no physical possession was handed over on the date of agreement to sell; states that possession was handed over by Mr. Sondhi on 04.10.2002; admits that original titled documents were not handed over; also admits that no GPA was executed on the said date and further states that there is no document to show when and where the balance amount was ever agreed to be paid. DW1 in his cross examination admits that neither he nor any witness had signed any document on 15.05.2002, the date of execution of the agreement to sell. No evidence is adduced by defendant to show when and where, the said document was signed. In his cross defendant has also given evasive reply pertaining to signing of the abovesaid document.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 29 of 44 10.34. Similarly, in the documents i.e. possession letter and receipt Ex. DW1/3 and DW1/2, it is mentioned that the defendant had taken over actual vacant physical possession alongwith all original documents. This statement is also denied as wrong by the defendant in his testimony. 10.35. Perusal of the above documents i.e. Agreement to sell, GPA, receipt and possession letter would also show that it contains blanks/ insertion at few places which are filled in ink later on, does not carry any initial or signature by whom and when the said particular were filled raising suspicion on the very execution of the documents. 10.36 I fail to understand what sanctity can be attached to these documents when the terms thereof are himself denied & contradicted by defendant. Defendant is shredding the same branch of tree on which he is sitting.
10.37 Ingenuity of the documents is further fortified by the fact that an affidavit dated 25.02.2002 alleged to be executed by Mr. Sondhi was filed and relied upon by the defendant in his pleadings alongwith other documents. But later on the said document was given up by the defendant in his evidence, not relied upon, after coming to know that Mr. Sondhi was not in India at the relevant point of time. Plaintiff has filed passport of Mr. Sondhi to corroborate her stand.
10.38 Thus, in view of my above discussion and findings thereon, I have no hesitation in arriving of the conclusion that the documents CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 30 of 44 Agreement to sell/GPA/WILL etc relied upon by the defendant in the present dispute are false and fabricated documents. No legal right or interest eminates therefrom; said documents have no value in the eyes of law. Accordingly, the same are entitled to declared as null and void. 10.39. There is also another aspect of the controversy. The Hon'ble Court of Delhi in a case titled as WG. CDR. (RETD.) SH. YESHVIR SINGH TOMAR versus DR. O. P. KOHLI & ORS has held that by virtue of the amendment brought about to Section 53A of the Transfer of Property Act, 1882 w.e.f 24.09.2001 by the Act 48 of 2001, an Agreement to Sell in the nature of part performance cannot create rights unless the agreement is registered and stamped at 90% of the value of the sale deed as per Article 23A of the Schedule I of the Indian Stamp Act, 1899 as applicable to Delhi which was accordingly amended by the Act 48 of 2001. 10.40. It is stated that Agreement to Sell, alleged to be executed on 15.05.2002, admittedly is an unregistered document and does not bear the requisite stamp duty under Article 23A of the Indian Stamp Act, 1899 as applicable to Delhi.
10.41. In view of the above, since the Agreement to Sell in question is an unregistered and unstamped, no rights can be claimed under the same. What cannot be directly done cannot be indirectly done and a power of attorney, merely because it is registered, will not confer rights in the nature of ownership in the property. As held by the Hon'ble High Court that in fact a CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 31 of 44 power of attorney which effectively gives ownership rights of the suit property by allowing the attorney to sell the immovable property by virtue of Article 48(f) of the Indian Stamp Act as applicable to Delhi will have to have the same duty as a conveyance deed as per Article 23 of the Indian Stamp Act for the amount of consideration. Herein, evidently no stamp duty is paid by the defendant.
10.42. In view of the settled position of law, I am of the opinion that even otherwise the Agreement to sell and the GPA does not create any interest/right in favour of the plaintiff with regard to the suit property. 10.43. In view of my above detailed discussion and finding thereon, I am of the considered opinion that the defendant has miserably failed to prove the execution of the documents by Sh. D. R. Sondhi, accordingly the issue is decided in favour of the plaintiff Ms. Prema Bhandari and against the defendant Sh. Sachdev Lohia. Defendant has no right and interest in the suit property.
11 Issue no.2 Whether the plaintiff was in possession of the suit land after 04.10.2002? OPP.
Issue no.4.: Whether the defendant no. 1 has been dispossessed from the suit property on 30.08.2003 by the plaintiff? OPD. 11.1 These issues are taken up together as they are interrelated with each other.
11.2 It is case of the plaintiff that her father Sh. D. R. sondhi till his CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 32 of 44 death, and thereafter, the plaintiff herself is in continuous and uninterrupted possession of the suit premises. Plaintiff has stated that her father never ever sold the suit premises to any person in his lifetime. Neither the possession ever given to any person. The property was looked after and maintained by her father, through servants and caretakers till the year 2003, when he died. Thereafter, plaintiff herself in continuous and peaceful possession of the suit premises.
11.3 Defendant's case is that the suit property was sold by Sh. D. R. Sondhi and Possession was handed over to the defendant on 04.10.2002. 11.4 In support of her case, plaintiff has deposed reiterating the contents of the plaint of her suit stating thereby; that her father D.R. Sondhi had never ever executed any alleged Agreement to sell, Will, GPA, Possession letter and receipt. Nor gave possession to the defendant, or to anybody else at any point of time. The farm land in question was purchased by her father through a registered sale deed dated 16.01.1965 Ex. P1; he was in continuous possession of the suit premises till his death, and thereafter, she herself is in the possession of the premises till date. 11.5. In support of her testimony to show her (and her father's) continuous possession plaintiff has filed following documents i.e.
(i). ledger /personal diaries maintained by Sh. D.R. Sondhi for the year 19911992 exhibited as Ex.PW1/6, showing the receipt of the cash received by her father towards the sale of agriculture produce in respect to 3 CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 33 of 44 Pine Drive, Chattarpur, New Delhi.
(ii) Similar ledger/personal dairy are filed for next successive year for 1992 to 2002 exhibited as Ex.PW1/7 to Ex.PW1/14, wherein also receipt of the cash payment by Sh. D.R. Sondhi is reflected in his hand writing.
(iii) PW1 has also filed ITR's of her father from the year 1988 till 2002 exhibited as Ex.PW1/15 to Ex.PW1/26, in which the income from the farm is duly reflected. The signatures on the said documents are identified by the PW1. ITR's for the year 2002 - 2003 filed by plaintiff on behalf of her father are also placed on record reflecting the agriculture income received in the corresponding year.
(iv) To show her continuous possession PW1 has relied upon the letters written by the caretaker of the farm land Sh. Rafiq Ahmed relating to activities of the farm marked as PW1/30 and PW1/31; statement of account dated 14.01.2003 and agriculture produce of the farm land exhibited as Ex.PW1/32. The document Ex. PW1/31 reflects the payment of Rs.35,000/ less expenses in cash made to Sh. Rafiq Ahmed. The signature and the handwriting on the documents are identified by the PW1. The income from the farm produce, for a sum of Rs.25,000/ was deposited by PW1 in account of her father, same is also reflected in the deposit slip exhibited as Ex.PW1/33.
11.6. PW1 deposed that on 05.10.2002 she alongwith somewhat over CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 34 of 44 100 guests celebrated the 89th birthday of her father at her father's residence. She and her father had driven to the farm land; spent over an hour there; gave some instructions to Rafiq Ahmed relating to planting / sowing of agriculture seeds, particularly pruning of rose bushes. It is also deposed she alongwith her father regularly visited the farm house. It is stated that December 2002 she visited the farm land after returning from the Mumbai where her father had suffered heart attack. Also deposed that she alongwith her father had again visited the premises in January, February and March 2003; sometimes they also accompanied by her husband.
11.7. The January, February visits were mainly concerned with terminating the services of Rafiq Ahmed; number of discussions were held in January and February 2002 in this regard. In final settlement of account, Rafiq had demanded a sum of Rs.2,50,000/; one lac withdrawn from IDBI bank by cheque and Rs. 1.5 lac by cash from different accounts of IDBI bank, dated 12.03.2003, to be given to Sh. Rafiq Ahmed. No final settlement could be arrived, thereafter her father died and amount could not be paid to Sh. Rafiq Ahmed.
11.8. PW1 further deposed that on 02.08.2003, an agreement was arrived between herself and Rafiq Ahmed in full and final settlement for a sum of Rs.2,30,000/; the amount was paid in presence of MR. Rohit Diesh and Mr. Devender Singh; Rafiq Ahmed had executed two acknowledgment receipts. One receipt is computer printout in English and other is in Hindi, CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 35 of 44 which was written by her at the farm. The two receipts are Ex.PW1/45 and Ex.PW1/46. It is further stated that settlement terms were recorded by her, duly signed by the plaintiff and Rafiq Ahmed which is Ex.PW1/43. It is stated that an advance payment of Rs.5000/ was also made in cash by plaintiff to Rafiq Ahmed vide receipt Ex.PW1/44. It is further stated that a tentative date of 09.08.2003 was fixed for making final payment and Rafiq would make all his arrangements by then and leave the farm. 11.9. In her evidence plaintiff has also examined PW2 Sh. Rohit Diesh who accompanied the plaintiff on the date when the settlement was arrived with Rafiq Ahmed. The cash receipts are witnessed by PW2 alonwith one witness Sh. Devender Singh from Super Constructions. 11.10. Plaintiff has placed on record the receipts dated 14.08.2003, 20.08.2003 and 24.08.2003 Ex. PW1/47, Ex. PW1/48 AND Ex. PW1/49 issued by Sh. Devender Singh who in his examination as PW6 has confirmed to have executed the said receipts. 11.11. PW1 also deposed to have employed the guards to look after the farm land from M/s Dig vig Securities. The bills raised and the receipts of the amount paid by the plaintiff are placed on record and Ex. PW1/52 to PW1/54.
11.12 PW2 Rohit Diesh in his testimony has supported and corroborated the deposition of plaintiff. PW2 deposed that on 07.08.2003 he alsongwith Ms. Prema Bhandari had gone to the farm land in question herein.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 36 of 44 A receipt in English was typed by him which is Ex. PW1/45. It is deposed that on reaching the farm house he was interoduced to Sh. Rafiq Ahmed and Sh. Devender Singh who were already present there. It is stated that as Sh Rafiq Ahmed was not conversant with the English language and therefore, another receipt in Hindi was prepared. Sh. Rafiq Ahmed was also present. It is deposed that a cash payment was made by Ms. Bhandari to Sh. Rafiq Ahmed who had signed the two acknowledgment receipt in his presence and also in presence of Sh. Devender Singh.
11.13. On Behalf of M/s Dig Vig Security Mr. Devender Singh was examined by plaintiff as PW6. Initially, in his examination, Mr. Devender Singh denied meeting the plaintiff, or putting the fence wires on the boundaries of the premises. Put under cross examination PW6 has admitted visiting the farm land in question as well meeting with Ms. Bhandari and also admited to have provided securities at the farm land. Further, in his cross examination he also admits to have visited the site alongwith Ms. Bhandari to give some payment to some Muslim Mali. He admits his signatures on the receipts exhibited as Ex.PW1/44 and Ex.PW1/45; also admit to have done the barbed wiring work on the suit property; further admits his signature on the receipts exhibited as Ex.PW1/47 to Ex.PW1/49 against the payment received by him from the plaintiff against the above said work. He admits and corroborates the testimonies of the PW1 and PW2 & their presence at the suit premises.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 37 of 44 11.14. To further strengthen her case PW1 has also placed on record electricity bills from dated 14.03.2003, 22.05.2003, 14.07.2003 and 13.10.2003 from her possession alongwith the receipts of the payments made by the plaintiff.
11.15. It is pertinent to mention herein that DW1 in his cross examination deposed that he is possession of the electricity bills, however, despite giving opportunities none of the bills were ever produced by the defendant. It was urged by the defendant that the said bills were taken by the police on 30.09.2003, however, the contentions are merit less admittedly the said bills are not part of the seizer memo.
11.16. DW1 also deposed to have applied for mutation of the property in his name before the concerned authorities, however, no such application was ever produced despite being requisitioned for. 11.17 PW1 further testified that she retained the services of Ms Dev Vig Security Services Pvt. Ltd. to provide security guards at the farm and they provided security guards for the period mid June 2003 to 30 th Aug 2003. The register was maintained by security guard who recorded the daily entry with time of Rafique and his family members and of other persons who used to services at the farm. The said register is marked as Ex.PW1/47. Plaintiff identified the signature of R.D. Yadav on each page of Ex.PW1/47. Plaintiff made two payments of Rs.10,000/ each in cash on 14 th Aug 2003 and other on 20th Aug 2003 to Devender Singh. The copies of receipts are marked as CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 38 of 44 Ex.PW1/48, Ex.PW1/49 and Ex.PW1/50.
11.18. Payment of three bills of M/s Dev Vig Security Pvt. first for the months of May 2003 paid by cheque signed by plaintiff's husband bearing no. 050896 dated 09.06.2003 for Rs.5280/ drawn on IDBI Bank exhibited as Ex.PW1/51.
11.19. Second for the month of June 2003 paid by cheque signed by plaintiff's husband bearing no. 050908 dated 03.07.2003 for Rs.6180/ drawn on IDBI Bank exhibited as Ex.PW1/52.
11.20. Third bill for the month and July 2003 paid by cheque signed by plaintiff's husband bearing no. 069333 dated 14.08.2003 for Rs.8100/ drawn on IDBI Bank exhibited as Ex.PW1/53.
11.21. Plaintiff also paying security company a sum of Rs.2500/ per guard. They raised additional demands and on 14 th Aug 2003 her husband and she made further cash payment of Rs.7000/ against receipt vide Ex.PW1/54.
11.22 PW6 Sh. Devender Singh admits the receipts and the payments made by the plaintiff also identifies the signatures of Mr. R.D. Yadav on the receipts.
11.23. Ex. PW1/D3 and Ex. DW6/1 the entries in the revenue record in the form of Khasra Girdavari. Entries therein for the period of Year 2002, 03,04,05,06 reflects the name of father of the plaintiff. Even though there are some cuttings/ overwriting but the fact remains the name of the owner shown CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 39 of 44 is MR. Sondhi, father of the plaintiff.
11.24. Plaintiff also stated that the original title deeds of the farm is registered deed of Sale deed 16th January 1965, which is Ex.PW1/56 where under he had acquired the farm. The farm was also mutated in her father's name in revenue records.
11.25. DW1 in his testimony deposed to be in possession of the suit property from 04.10.2004 on purchasing it from Sh. D. R. Sondhi. The possession letter alleged to be executed by Mr. Sondhi is placed on record and Ex. DW1/3. The signing of the possession letter and handing over the possession of the farm land is stated to be witnessed by Sh. Pramod Mishra and Sh. Suresh Kumar, neither of the witnesses has been examined nor any other evidence has been adduced in support of his contentions. Defendant has relied upon the photographs placed on record and annexure as P1 and Ex. PW2/6 to PW2/14 and taken by one person namely Sh. Manoj Nagar, examined as DW2 and testimony of Sh. Rambir Tanwar examined as DW3 in respect of lifted the soil from the farm land and issued cash memo Ex. as DW1/P6.
11.26. DW2 in his cross examination admits to have taken the photographs on the instruction of the defendant Sh. Sachdeve Lohia, further states that the photographs are in relation to the Lohia farms No.6; He admits in his cross examination that he has not gone to the farm house 3 Pine Drive. In his cross examined he stated that he did not remember whether any sign CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 40 of 44 board / hording board were affixed at the premises he visited. It is admitted that he was not aware about the nature of the constructed structure on the suit land. DW3 also in his cross examination admits to have visited the farm house in DLF Chhattarpur. He admits that the address mentioned in the Ex. DW1/P6 was written in the farm house i.e. 6 DLF, Chhattarpur. Testimonies of the DW1 and 3 does not inspire confidence as they themselves are not sure about the address of the farm they visited. Identification of the suit property remains to be established by the witnesses. 11.27. DW 1 has also relied upon and placed on record the complaints made to the police Ex. DW1/6 and DW1/7.l Perusal of the complaint would show, defendant has categorically stated that he was put in possession of the farm land on 08.10.2002. The statements in the police complaint and the deposition made in the evidence and pleadings are contradictory to each other, wherein in the deposition and pleading before the court, it is stated that he has put the possession on 04.10.2002. Defendant himself is not aware about the date on which the possession was taken. 11.28. In the entire evidence adduced by the defendant it has not come on record how and when the farm no. 6 DLF Chhattarpur came into existence. As admittedly farm No. 6 Pine Drive, Chhattarpur belongs to one person namely Sh. Rohit Kochar.
11.29. Thus, considering the entirety of the evidence produced by the parties, plaintiff has been successful to prove that Mr. D. R. Sondhi and after CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 41 of 44 his demise the plaintiff herein Ms. Prema Bhandari is in continuous possession of the farm land in dispute the year 1965. Defendant was never ever in possession of the suit premises at any point of time. 11.30. Be that it may be, even otherwise, the factum of possession is the legal possession. Possession devoid of any legal right or interest is no possession in the eyes of law. The status would be that of a trespasser. In view of my negative findings on the issue no. 3, defendant has miserably failed to show any right or interest in the suit property entitling him to claim possession. Accordingly, the issue is decided in favour of the plaintiff and against the defendant.
12. Issue no. 5. Whether the plaintiff can inherit the suit land in view of section 50 of Delhi Land Reforms Act? OPP.
Issue no. 6. Whether the plaintiff has any right in the suit property? OPP.
12.1. Facts involved in these issues are intermixed, so taken up together. There is no dispute regarding settled position of law that the plaintiff being a married daughter is not entitled to claim any inheritance right against the properties of her deceased father. However, in view of my findings on issue no. 1 that the deceased Late Sh. D. R. Sondhi, father of the plaintiff, had left behind him a Will dated 18.03.2003 Ex. PW1/41A, wherein the suit property has been bequeathed to the plaintiff by her father. Will stands duly proved, therefore, in my considered view the provisions of CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 42 of 44 section 50 of the DLR Act is not applicable herein. 12.2. Further, in terms of my findings on issue no.3, defendant has failed to show the execution of the documents, the basis on which defendant is claiming ownership rights in the suit premises, and considering the fact that the property was bequeathed to the plaintiff Sh. D. R. Sondhi through his last Will Ex. PW1/41A. In my view plaintiff is the absolute owner of the suit property and accordingly, these issues are decided in favour of the plaintiff and against the defendant.
13 7. Whether the plaintiff is entitled for decree of declaration and permanent injunction qua the land in question? OPP. 13.1. Considering the findings on the issues discussed herein above I am of the considered opinion that the plaintiff is entitled for decree of declaration and permanent injunction in terms of the prayer of the suit CS bearing no. 9893/16.
14 Relief:
A. In view of my above detailed discussions and findings on the issues, the main suit bearing CS no. 7898/16 is decreed in favour of the plaintiff and against the defendant with following reliefs:
(a) Plaintiff is entitled to decree of declaration that the Agreement to sell dt.
15.05.2002, GPA and Will dt. 08.10.2002, receipt and possession letter dt. 04.10.2002 alleged to be executed by Sh. D. R. Sondhi in favour of Sh. Sachdev Lohia are null and void.
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari Page no. 43 of 44
(b) Plaintiff Ms. Prema Bhandari is the absolute owner of the suit property admeasuring 18 Bigha and 6 Biswas; comprising in Khasra No. 1720(47), 1446/12(416), 1647/1(011), 1647/2(014), 1647/3(32), 1721(416), situated at village Chattar Pur, New Delhi.
(c) Decree of permanent injunction is also granted in favour of the plaintiff and against the defendant Sh. Sachdev Lohia. The defendant, his agents, nominies, servants etc. are hereby restrained from interfering with peaceful possession and enjoyment of the suit premises by the plaintiff. B. As discussed above and the findings thereon, defendant herein Sh. Sachdev Lohia miserably failed to prove the ownership rights or the possession pertaining to the suit property in his favour, and hence the suit bearing no. 9893/16 filed by Sh. Sachdev Lohia is dismissed with cost as false and frivolous.
Cost of the suit is awarded in favour of the plaintiff. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court (Anil Antil)
Today, on 27.02.2017 ADJ05,South East
Saket Court, New Delhi
CS No. 7828/16 Prema Bhandari Vs. Sh. Sachdev Lohia & Ors.
And
CS No. 9893/16 Sachdev Lohia Vs. Prema Bhandari
Page no. 44 of 44